The Defamation Act 2013 who will it affect?

The Defamation Act 2013 came into force on 1 January 2014 to reduce trivial claims and libel tourism and introduce a public interest defence and single publication rule.  Although there are limited examples of how these changes will work in practice, the law will significantly affect how individuals and businesses bring or defend a defamation action.

Potential Claimants

The new Act requires people to show that defamatory statements have caused “serious harm” to their reputations, whereas previously all defamatory statements were deemed sufficiently serious to warrant a claim.  This higher threshold is intended to discourage trivial claims.

Businesses must also show that the words complained of caused them “serious financial loss”.  The aim is to stop big businesses using defamation actions as a way to silence their critics.

The new single publication rule prevents claimants benefitting from multiple causes of action for one piece of material every time it receives a hit.  The Act places a one year time limit on bringing an action, from the date of the first publication of the material to the public.  If the material is re-published in its exact form, or substantially the same, the date of original publication stands.  The time limit starts again if the material is re-published by a new publisher, or if it’s materially different from the original.
Potential Defendants

If you are defending a defamation claim, the new Act has replaced and codified many of the existing common law defences.

• The defence of truth replaces the common law defence of justification.  This means you must show that the assertion conveyed by the statement is “substantially true”, rather than just “true”, giving a little more wriggle room for defendants.

• The defence of honest opinion replaces the common law’s test of comment.  A statement does not have to be correct, but the defendant must show that it is an expression of opinion and indicate the basis of that opinion.  This opinion must be one that an honest person could have made based on the same information at the same time.

• The defence of publication is one of the bigger changes made by the Act.  It provides greater protection for statements made or reasonably believed to be made in the public interest.  This defence has the greatest impact on journalism, with the court now making allowances for editorial judgement.

• Finally, there is a new “qualified privilege” defence for published scientists and academics.

Website Operators

The Act provides greater protection to website operators hosting user-generated content.  It should be considered alongside the Defamation (Operators of Websites) Regulations 2013, which outline the procedures to follow, such as the length of time a website operator has to respond to a complaint.

The Act allows the operator to defend a defamatory action where they did not post the statement on their website.  However, this section has many caveats.  For example, the defence doesn’t hold if the operator cannot identify the person who posted the statement.  So website operators need to be able to easily identify those who post on their sites.

If the website operator is aware of a complaint concerning the statement, or fails to respond the complaint in line with the regulations, then the website operator becomes liable for the defamation action.  They cannot use the defence that they did not post the statement on their website.

Conclusion

The biggest impact of the Defamation Act will be for journalists and website operators defending defamation actions.  The regulations give them clearer guidance about what’s expected of them if they want legal protection.  The Act appears to update some arguably antiquated common laws, but there is still uncertainty about its impact, particularly for website operators.